Pandemic Rulings: Between Dialogues and Shortcuts at the Inter-American Court of Human Rights

—Melina Girardi Fachin and Bruna Nowak, Universidade Federal do Paraná

On May 26, 2020, the President of the Inter-American Court of Human Rights (IACtHR) issued the Court’s first decision concerning the COVID-19 pandemic. The resolution decided upon urgent measures regarding the already-decided Case of Vélez Loor v. Panama, and thus ordered Panama to take a range of new measures to protect immigration detainees during the pandemic. This decision raises important questions regarding the procedure of the IACtHR, which link to broader issues regarding the relationship between the Court and member states. These questions include (1) the proper scope of judicial orders by a single member of the Court (in this case, its President), and (2) the proper role of provisional measures when the Court has already decided the merits of the case that gives rise to the request. 

Originally, provisional measures aimed to assure the effectiveness of a future judicial decision. However, practice shows that provisional measures cases do not usually become a contentious dispute before the Court. This is when the protective facet of the measures is triggered, as a jurisdictional preventive guarantee that intends to stop irreparable damages.

The American Convention on Human Rights (ACHR) establishes, in its article 63.2, that “in cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration”. Thus, provisional measures hold a precautionary character: they are intended to prevent more harm from being caused in the context of human rights violations. 

Article 25 of the Court’s Rules of Procedure (hereinafter RoP) clarifies that the Court can act at the request of a party or at its motion to adopt provisional measures with respect to matters already submitted to it. If the factual situation has not been presented before the Court, it can act only if activated by the Inter-American Commission of Human Rights.

Usually, the whole Court deliberates about the measures, but, according to article 25.4 of the RoP, if the Court is not sitting, the President “shall call upon the government concerned to adopt such urgent measures as may be necessary to ensure the effectiveness of any provisional measures that may be ordered by the Court at its next session”. This means that a monocratic decision can be ratified by all the members of the IACtHR in the future. 

Based on the previous dispositions, the petitioners of the Case of Vélez Loor v. Panama presented to the Court, on May 7, 2020, a request for provisional measures. The case refers to the imprisonment of Mr. VélezLoor, an Ecuadorian citizen, at two detention centers in the Panamanian Province of Darién. The reason for his detention was lack of documentation to remain in Panama. The decision of this case was delivered by the Court in 2010 and is still being monitored for compliance.

In its 2010 merits decision, the IACtHR had held the State of Panama responsible for the violation of the following articles of the ACHR: 7 (right to personal liberty); 8 (right to a fair trial); 9 (principle of legality); 5 (right to personal integrity), due to the inappropriate conditions of detention and regarding the obligation to investigate acts of torture; 8 and 25 (right to judicial protection), regarding the obligation to guarantee, without discrimination, the right of access to justice. The Court also found violations of articles 1, 6 and 8 of the Inter-American Convention for the Prevention and Punishment of Torture. 

This was the background that originated the solicitation for provisional measures by the petitioners of the case. The basis of the request was dispositive point number 15 of the sentence, which imposed on the State of Panama the duty to create establishments with sufficient capacity and adequate material conditions to lodge persons whose detention is necessary and proportionate for migratory reasons. 

Since the Vélez Loor case was decided, the Court has issued one resolution of monitoring of compliance, in February 2013, in which it concluded that point number 15 was still pending implementation. 

The request for provisional measures argued that the immigrant persons detained at the centers La Peñita and Laja Blanca, in the Province of Darién, are at risk of suffering irreparable violations of their rights to life, health, and personal integrity due to the context caused by the pandemic. The State of Panama has closed its boundaries and limited the right to circulation, measures that have interfered with the humanitarian assistance provided for immigrants. Furthermore, the petitioners affirm that the conditions of detention in the two centers are inadequate to prevent the spread of COVID-19. 

The IACtHR’s President agreed, and concluded that the measures ordered by dispositive point number 15 are structural and aim to prevent other people from suffering the same violations that were perpetrated against Mr. VélezLoor. The President thus decided to grant the provisional measures, agreeing with the petitioners’ statement that the threats of violations are closely connected to the aforementioned dispositive paragraph of the Veléz Loor v. Panama sentence. The IACtHR President ordered the State of Panama to adopt a long list of measures to protect the rights of the immigrant persons located in La Peñita and Laja Blanca, including access to health services without discrimination and treatment for COVID-19. 

The President explained that, although the evaluation of the implementation of reparation measures normally takes place during the monitoring of compliance with a sentence, in this particular case, it has decided to adopt provisional measures because of the gravity and urgency of the situation. 

The Court President’s reaction raises important questions regarding IACtHR procedure. Procedurally speaking, the timing of the decision, its adoption by only one justice, and even the jurisdiction of the Court can be problematized. The critical perspective adopted here is not aimed at undermining the important role of the Court, but exactly the opposite: to perfect and strengthen the system and its jurisdiction. 

First, it is not unusual for the President of the Court alone to concede or refuse a request for urgent measures. In fact, some monocratic resolutions expressly provide that the IACtHR’s President has consulted the other judges before deciding. In some cases, the President’s decision is confirmed by the Court during its periodic sessions of judgments. Taking the Latin-American Constitutional courts as an example, the IACtHR must be aware of the negative effects that the monocratization of rulings can have in local constitutional systems, mainly because of an alleged absence of representativeness in the decision-making process. 

Moreover, individual orders could trigger an institutional dilemma if the Court were to overrule a monocratic decision of the President. That has never happened, but, as explained below, some of these issues have caused disagreement between members of the Court in other cases.

More intriguing is the concession of provisional measures regarding cases that have already been decided. For instance, in a resolution from March 12, 2019, the Court issued provisional measures and monitored the implementation of fourteen decisions against the State of Guatemala. This example and the Vélez Loor case show that there can be an overlap between the monitoring of compliance with sentences and the concession of provisional measures.

However, the Court is not unanimous in its ability to issue post-judgment provisional measures. Judge Vio Grossi constantly presents dissenting opinions when the Court authorizes provisional measures during the monitoring of the compliance phase of a decision. The Judge has argued that, once the Court has issued a definitive and unappealable decision in a contentious case, the Court has no jurisdiction to issue provisional measures. After a decision on the merits, the Court can only deliver a decision on remedies and costs (article 66.1 of the Court’s RoP), interpret the decision (article 67 of the ACHR and article 68 of the RoP), to rectify mistakes (article 76 of the RoP), to monitor compliance with the decision (article 69 of the RoP), and to inform the Organization of the American States General Assembly of noncompliance (article 65 of the ACHR). 

Judge Sierra Porto has also issued dissenting votes. Diverging from Judge Vio Grossi, Judge Sierra Porto argues that the IACtHR can grant provisional measures during the monitoring of compliance with a decision. However, the threshold of analysis must be more rigorous than the one adopted when the case has not yet been decided. Otherwise, there can be a denaturalization of the Court’s jurisdiction through the introduction of new facts and new victims under the pretext of ensuring compliance with a prior judgment. The Judge has added that the IACtHR should be careful not to grant provisional measures that are permanent rather than temporary in their nature since definitive measures should be determined only during the merits phase of a case. 

In this sense, one controversial aspect of IACtHR procedure has been the expansion of the scope of provisional measures during a contentious case. In the Resolution from May 26, 2020, the President of Court ordered very broad provisional measures in the context of the pandemic, such as the guarantee of sexual and reproductive rights for women and access to food and potable water. This is not the first time that the Court has acted in such a fashion. In the case of Durand and Ugarte v. Peru, the Court decided on a couple of requests for provisional measures after this case was decided. On one occasion, the IACtHR conceded the measures and recognized that the requests were related to the object of the contentious case.

In another opportunity, the Court did not examine the request for provisional measures because the person who requested it and the persons in favor of whom the request was made were neither declared as victims in the decision nor were acting as representatives of victims. Therefore, the IACtHR held that there was a lack of procedural legitimacy to present a request for provisional measures. The Court also stated that during the monitoring of compliance of a sentence, it is not allowed to include new beneficiaries of remedial measures nor to determine additional remedies.

Looking at the Vélez Loor case, these critiques can be softened because the remedy provided by point 15 of the sentence is broad: a structural measure that serves as a guarantee of non-repetition. This broadness extended the provisional measures to other persons – yet to be identified – other than the victim of the original case.

It is interesting to notice that there was no other way to include new beneficiaries than having Mr. Vélez Loor as a point of departure, since the Court is not allowed to act ex officio to grant provisional measures unless the request refers to a case that is already under its jurisdiction. The alternative would be to present a brand new request for precautionary measures before the Inter-American Commission on Human Rights. However, it seems like the petitioners intended to obtain a decision from the IACtHR – and the structural nature of point 15 of the sentence was strategic for this purpose.

The urgent measures in the Case of Vélez Loor v. Panama, besides being necessary in the pandemic context, raise the importance of dialogues between the regional system and local constitutional orders. The IACtHR, when anticipating the consequences of some choices and bets of the Latin-American governments in exceptional circumstances, can act vigorously but carefully under its existing procedures in order to protect its institutional role.

Suggested citation: Melina Girardi Fachin and Bruna Nowak, Pandemic Rulings: Between Dialogues and Shortcuts at the Inter-American Court of Human Rights, Int’l J. Const. L. Blog, July 9, 2020, at: http://www.iconnectblog.com/2020/07/pandemic-rulings-between-dialogues-and-shortcuts-at-the-inter-american-court-of-human-rights/